Respond to a discrimination claim by an employee

We will help you assess and respond to a discrimination claim, build a defensible record, and limit your legal exposure through the complaint process.

A discrimination claim from an employee can be made under federal or state anti-discrimination legislation, under the general protections provisions of employment legislation, or through a combination of both. Getting the response right from the outset matters, because the steps you take in the early stages of the complaint will affect your legal position throughout the process. We advise employers on discrimination complaints from the initial assessment through to the hearing or resolution, and help you avoid the collateral damage that poorly managed responses regularly create.

What is a discrimination claim and how can one be made against an employer?

A discrimination claim arises when an employee alleges they were treated less favourably, or subjected to a detriment, because of a protected attribute such as race, sex, pregnancy, disability, age, or religious belief. Claims can be made under federal legislation including the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth), the Age Discrimination Act 2004 (Cth), and the Disability Discrimination Act 1992 (Cth), or under state-based legislation such as the Anti-Discrimination Act 1977 (NSW) or the Equal Opportunity Act 1984 (SA). An employee can also bring a general protections claim under the Fair Work Act 2009 (Cth) if they allege that an adverse action was taken against them because of a protected attribute or the exercise of a workplace right. The processes, timeframes, and remedies available under each pathway differ, and the employer’s obligations in responding depend on which framework has been engaged.

What is the difference between a discrimination claim and a general protections claim?

A discrimination claim under anti-discrimination legislation alleges that an employee was treated less favourably because of a protected attribute such as race, sex, disability, or age. A general protections claim under the Fair Work Act 2009 (Cth) alleges that an adverse action was taken against an employee because they exercised a workplace right or because of a protected attribute under the Act. General protections claims involving dismissal must be made within 21 days of termination, creating a short window for the employer to respond, while discrimination claims under state legislation may be made within longer timeframes. We advise on which framework applies and what the employer’s exposure is under each.

What should I do immediately after receiving a discrimination complaint?

When you receive a discrimination complaint, the first step is to preserve all relevant documents, including emails, performance records, payroll records, and any communications relating to the employment decisions the employee is complaining about. You should not take further action against the complaining employee while the complaint is being assessed, as doing so could give rise to an additional adverse action or victimisation claim. The complaint should be assessed promptly with legal advice before any substantive response is made to the employee or any regulatory body.

Can I be found liable for discrimination if I had no intention to discriminate?

Under most Australian anti-discrimination legislation, discrimination can be established without proof of intention. Both direct discrimination and indirect discrimination, which involves applying a condition that disproportionately disadvantages people with a protected attribute and cannot be justified, can be found without proof the employer meant to discriminate. This means an employer who has policies or practices that unintentionally disadvantage employees with protected attributes may still face a valid claim, and we advise on whether the conduct alleged constitutes discrimination under the applicable legislation and what defences may be available.

What are the potential remedies if a discrimination claim succeeds?

Remedies available if a discrimination claim succeeds depend on the legislation under which the claim was made and the forum in which it was heard. Outcomes can include compensation for financial loss and non-economic loss such as hurt, humiliation, and distress, orders requiring the employer to change specific policies or practices, and orders for reinstatement of a dismissed employee. Under the Fair Work Act 2009 (Cth), penalties for adverse action taken for discriminatory reasons can also be significant, and we advise on the potential outcomes in the specific circumstances and the strategy that gives the employer the best prospects of a favourable resolution.

The complaint assessed against the applicable legislation before any response is made.

Documentary record reviewed and preserved to support the employer's position.

Resolution strategy developed to achieve the best available outcome.

Discrimination claims are often complicated most by what the employer does after receiving the complaint.

Employers who take action in the period after a discrimination complaint is received, without understanding what is and is not safe to do, regularly create additional exposure through those very steps. Getting advice on your obligations and the strategy for responding before you act is the most important thing you can do.

The steps you take after a discrimination complaint is received can create more exposure than the complaint itself.

An employee has made a discrimination complaint, and you are not sure which legislation it has been made under, what you are required to do in response, or what the exposure is if the claim proceeds. The steps you take in the period immediately after the complaint is received will affect your legal position throughout the process, and some of those steps can create additional exposure if taken without advice. You need a clear strategy before you respond.

We will assess the complaint and advise on which legislation applies and what the employer's obligations and exposure are.
We will advise on the immediate steps to take to preserve documents and avoid additional exposure in the period after the complaint is received.
We will develop a response strategy that gives the employer the best prospects of a favourable resolution at the earliest possible stage.
We will represent the employer through conciliation, tribunal proceedings, or negotiated settlement as appropriate.

An employee has said you discriminated against them, and the allegation cuts to the heart of how you run your workplace.

An employee or former employee has made a formal allegation that they were treated less favourably because of a protected attribute, whether that is their sex, age, disability, pregnancy, religion, or another characteristic the law protects. The allegation may be connected to a decision about their employment, a workplace policy, or the conduct of another employee or manager. You want to understand the basis of the claim, whether it has merit, and what you need to do to respond correctly without making the situation worse. The risk is that the steps you take before you have advice can significantly affect your position later.

What's included in your discrimination claim response service

Complaint assessment and applicable legislation advice.
Document preservation and evidence review guidance.
Response strategy and legal advice.
Conciliation representation and negotiation.
Tribunal defence and proceedings management.

What happens when employers respond to discrimination complaints without understanding their obligations?

Employers who take action after a discrimination complaint is received, without understanding what they can and cannot do, frequently compound the problem they are trying to resolve. A manager who distances themselves from the complaining employee, or who takes steps that could be seen as retaliatory, can create a fresh adverse action or victimisation claim on top of the original allegation. An employer who dismisses a complaining employee while the complaint is on foot, without legal advice, faces a near-certain adverse action claim in addition to the discrimination matter. Each of these mistakes is avoidable, and each makes the overall position significantly more difficult and more expensive to resolve.

Here is how we help you respond to a discrimination complaint and protect your business.

We assess the complaint and advise on which legislation applies, what the employer’s obligations are, and what the exposure looks like across the different possible pathways. We advise on the immediate steps the employer should and should not take, and how to engage with the regulatory process in a way that preserves the employer’s position. We develop a strategy for resolving the matter at the earliest possible stage, preparing the defence the employer will need if the matter proceeds to a tribunal. Employers who respond to discrimination complaints with a clear strategy from the outset are in a much stronger position to achieve a favourable resolution than those who react without advice.

Three steps to responding to a discrimination complaint with a clear strategy.

Complaint assessed, position protected, resolution pursued.

Assess the complaint.

We assess the complaint, advise on which legislation applies, and identify the employer's obligations, exposure, and the evidence that supports the employer's position.

Protect the position.

We advise on what to do and what not to do after the complaint is received, and how to engage with the regulatory process without creating additional exposure.

Pursue resolution.

We develop a resolution strategy, prepare the employer's response and evidence, and represent the employer through conciliation or tribunal proceedings.

Employment lawyers with experience advising employers on discrimination complaints, general protections claims, and adverse action matters under federal and state legislation.

We have seen how unsettling it is to receive a formal discrimination complaint, particularly when the employer genuinely believes that the conduct alleged did not occur or was justified. Discrimination claims are legally and factually complex, and the employer’s response in the early stages carries significant weight throughout the process. Our employment lawyers have advised employers through discrimination complaints made under a range of federal and state anti-discrimination frameworks, including matters involving allegations of sex discrimination, age discrimination, disability discrimination, and racial discrimination. We know how to develop a strategy that addresses the claim on its merits while limiting the collateral damage.

We understand you want to know the cost, before we get started.

We will map out our process, from beginning to end, so you know what the journey will look like before you get started.

We will provide you with a clear and detailed Work Proposal covering each step along the way.

Our fair fees are all-inclusive. No hidden costs for telephone calls, emails, photocopying, couriers, or coffee.

Our great lawyer guarantee

We want to be part of your team over the long term. We achieve this by adhering to these core principles:

Take the time

We listen carefully to understand what you want to achieve. Then we thoroughly explain our advice and step you through the documents. You can be sure you know the full consequences.

Share our knowledge

We will pass on as much knowledge as we can, so you can make your own informed decisions. We want to make you truly independent.

Stick to our knitting

We only do what we're good at. You can be confident that we know what we're doing and don't pass on the cost of our learning.

Work as one team

Someone will always be available to answer your questions, or point you in the right direction. You will also benefit from a range of perspectives and experience.

Fair pricing

For advice and documents, we provide a fixed or capped quote so you don't take price risk. If you're in a dispute, we map out the process and costs so you know what to expect.

It's your show

We're not in this for our egos. We're in it for a front row seat to witness your success.

Ready to get advice on the discrimination complaint you are facing?

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